United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court for decision on defendant
Robert Wesley Fox's Motion to Dismiss (Doc. 9). On August
23, 2017, a grand jury charged Mr. Fox with one count of
failing to register as required under the Sex Offender
Registration and Notification Act (“SORNA”). Mr.
Fox now challenges this indictment, arguing that SORNA is
unconstitutional. The government has filed a response to Mr.
Fox's motion (Doc. 12). On January 4, 2018, the court
held a hearing and took this motion under advisement. The
court is ready to rule. For reasons explained below, the
court denies Mr. Fox's Motion to Dismiss.
Leading to the Government Charging Mr. Fox
April 4, 1997, the El Paso County District Court in Colorado
convicted Mr. Fox of Sexual Assault of a Child between the
Age of 15 and 18 Years Old. As required by various state
sexual offender registration laws, he registered as a sex
offender at least three times: on April 5, 2010 in Sedgwick
County, Kansas; on May 18, 2010, in Colorado Springs,
Colorado; and on October 11, 2010 in Lee County, Mississippi.
August 2017, deputies from the United States Marshals Service
(USMS) were advisedthat Lee County, Mississippi had issued a
warrant for Mr. Fox for failing to register as a sex
offender. According to the deputies' information, Mr. Fox
was living in Marysville, Kansas. On August 16, 2017, the
deputies contacted Marysville law enforcement officials and
showed them Mr. Fox's photograph. The Marysville
officials advised that they believed they had spoken with Mr.
Fox earlier that summer. And USMS deputies discovered that
someone added Mr. Fox's name to a Westar Energy account
in Marysville on June 20, 2017.
day, USMS deputies arrested Mr. Fox on the Mississippi
warrant. On August 23, 2017, the grand jury charged Mr. Fox
with failing to register as required under SORNA.
response to several high profile and horrific incidents
committed by individuals previously convicted of sex crimes,
Congress passed SORNA to create a comprehensive national
registry for sex offenders. 34 U.S.C. § 20901 (“In
order to protect the public from sex offenders and offenders
against children, and in response to the vicious attacks by
violent predators against the victims listed below, Congress
. . . establishes a comprehensive national system for the
registration of [sex] offenders . . .
.”). It aims to accomplish this goal by
creating “a national baseline for [state] sex offender
registration and notification programs.” The National
Guidelines for Sex Offender Registration and Notification, 73
Fed. Reg. 38, 030, 38, 046 (July 2, 2008).
requires each sex offender to register in each state where he
resides, is an employee, and is a student. 34 U.S.C. §
20913(a). When registering, the offender must provide, among
other things, his name, social security number, home address,
employer's address, school's address, license plate
information, a description of his vehicle, and international
travel plans. Id. § 20914(a). Each state, in
turn, must ensure that its registry contains, among other
things, a physical description of the sex offender, the law
under which he was convicted, the offender's current
photograph, his DNA, his fingerprints, and a copy of the
offender's driver's license. Id. §
20914(b). An offender who moves across state lines and fails
to register can be charged with a federal crime. 18 U.S.C.
also mandates that each state's registry is available on
the Internet. 34 U.S.C. § 20920(a). And the Attorney
General maintains a national database for all sex offenders.
The Attorney General must allow social networking sites to
access this information. Id. § 20917(a).
did not decide whether sex offenders who committed offenses
before SORNA took effect were required to register.
Id. § 20913(d). Instead, it allowed the
Attorney General to decide that question. Id.
Motion to Dismiss, Mr. Fox argues that SORNA is
unconstitutional for four reasons. First, he argues that
SORNA violates the First Amendment's compelled speech
doctrine. Second, he asserts that SORNA violates the
Constitution's Ex Post Facto Clause. Third, he contends
that SORNA impermissibly delegates legislative authority to
the Attorney General. And last, he argues that Congress
exceeded its ...